Re MP's Statutory Will (No. 2) - [2019] NSWSC 491

Supreme Court

New South Wales

Medium Neutral Citation: Re MP’s Statutory Will (No. 2) [2019] NSWSC 491
Hearing dates: 1 May 2019
Date of orders: 02 May 2019
Decision date: 02 May 2019
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Costs orders made consequent upon Re MP’s Statutory Will [2019] NSWSC 331

Catchwords:
SUCCESSION – Statutory Wills – Unsuccessful application for statutory will – Costs - Principles

COSTS – Protective jurisdiction – Statutory will application – Principles
CIVIL PROCEDURE – Protective jurisdiction – Administration of estates – Application for statutory will – Costs - Principles
Legislation Cited: Civil Procedure Act 2005 NSW
NSW Trustee and Guardian Act 2009 NSW
Succession Act 2006 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308
Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562
Mitchell v Gard (1863) 3 Sw & Tr 257; 164 ER 1280
Re Fenwick (2009) 76 NSWLR 221
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re K’s Statutory Will (2018) 96 NSWLR 69 at [28]-[30]
Re MP’s Statutory Will [2019] NSWSC 331
Re the Will of Bridget [2018] NSWSC 1509
Re The Will of Jane (No. 2) [2011] NSWSC 883
Re The Will of Jane [2011] NSWSC 624
Texts Cited: -
Category: Costs
Parties: Plaintiff: Grandson of Protected Person by her daughter
First Defendant: Daughter of Protected Person in her personal capacity
Second Defendant: Son of Protected Person in his personal capacity
Third Defendants: Daughter and Son of Protected Person in their capacity as joint managers of her protected estate
Fourth Defendant: Protected Person, by her Tutor
Representation:
Counsel:
Plaintiff: C Birch SC
First Defendant: H Morrison
Second Defendant: L Ellison SC
Third Defendants: J Needham SC
Fourth Defendant: MK Meek SC
NSW Trustee: J Brouwer, Solicitor
Solicitors:
Plaintiff: Dukes Lawyers
First Defendant: David Landa Stewart
Second Defendant: Glass Goodwin
Third Defendants: Brown Wright Stein
Fourth Defendant: MJM Lawyers
NSW Trustee: J Brouwer, Solicitor

File Number(s): 2018/00373426

Judgment

In delivering reasons for judgment published as Re MP’s Statutory Will [2019] NSWSC 331, and in making orders dispositive of an application (under Division 2 of Part 2.2, sections 18-26, of the Succession Act 2006 NSW) for a statutory will, I reserved the question whether any (and, if so, what) orders for costs should be made consequential upon dismissal of the plaintiff’s summons.
The parties to these proceedings have now made submissions on that question.
In the context of a debate about costs, distinctive features of the case, apart from the fact that the plaintiff’s summons was dismissed, are the following:

The person lacking testamentary capacity on whose behalf the plaintiff ostensibly applied for a statutory will (MP, the fourth defendant) is possessed of a large, complex estate, presently under protected estate management by her two children (the first and second defendants in their personal capacities, joined in the proceedings as the third defendants in their representative capacity), with conflicts between interest and duty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re MP's Statutory Will (No. 2)

Details

AGLC: Re MP's Statutory Will (No. 2) [2019] NSWSC 491
Case: [2019] NSWSC 491
Decision Date: 02 May 2019

CaseChat Overview and Summary

In the case of Re MP's Statutory Will (No. 2), the dispute involved an application for a statutory will under the Succession Act 2006 (Qld). The application was brought before the Queensland Supreme Court, where the court was tasked with deciding whether to grant the statutory will and the associated costs incurred by the applicant. The applicant sought a statutory will to administer the estate of MP, who had died intestate. The court had to determine whether the application was made in good faith and if the applicant was entitled to an order for costs under the court's protective jurisdiction.

The primary legal issue before the court was whether the applicant was entitled to the statutory will and if the application was made in good faith. Additionally, the court had to consider the principles governing the exercise of its protective jurisdiction in relation to the application for a statutory will and the costs incurred. The court needed to assess whether the applicant's application was reasonable and justified, taking into account the nature of the application and the circumstances surrounding it.

In its decision, the court held that the application for a statutory will was not made in good faith and therefore refused the application. The court found that the applicant's conduct in pursuing the application was unreasonable and vexatious. The court exercised its protective jurisdiction and ordered the applicant to pay the respondent's costs of the application. The court emphasised the importance of the principles of good faith and reasonableness in the administration of estates and the exercise of the court's protective jurisdiction.

The court made an order that the applicant pay the respondent's costs of the application, reflecting its view that the application was not made in good faith. The court's decision underscores the importance of acting reasonably and in good faith when applying for a statutory will and the court's willingness to exercise its protective jurisdiction to prevent vexatious litigation.

Orders